Rideout v. Gardner

• Decision Date: 28 September 2016
• Docket Number: No. 15-2021,15-2021
• Citation: 838 F.3d 65
• Parties: Leon H. Rideout, Andrew Langlois, Brandon D. Ross, Plaintiffs, Appellees, v. William M. Gardner, in his official capacity as Secretary of State of the State of New Hampshire, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

838 F.3d 65

Leon H. Rideout, Andrew Langlois, Brandon D. Ross, Plaintiffs, Appellees,
v.
William M. Gardner, in his official capacity as Secretary of State of the State of New Hampshire, Defendant, Appellant.

No. 15-2021

United States Court of Appeals, First Circuit.

September 28, 2016

Stephen G. LaBonte , Assistant Attorney General, with whom Joseph A. Foster , New Hampshire Attorney General, and Laura E. B. Lombardi , Senior Assistant Attorney General, were on brief, for appellant.

Gilles R. Bissonnette , with whom American Civil Liberties Union of New Hampshire , William E. Christie , and Shaheen & Gordon, P.A. , Concord, NH, were on brief, for appellees.

Christopher T. Bavitz , New York, NY, Cyberlaw Clinic, Harvard Law School , Justin Silverman , Sherman Oaks, CA, and Andrew F. Sellars on brief for The New England First Amendment Coalition and The Keene Sentinel, amici curiae.

Eugene Volokh , Los Angeles, CA, and Scott & Cyan Banister First Amendment Clinic, UCLA School of Law on brief for the Reporters Committee for Freedom of the Press, amicus curiae.

Neal Kumar Katyal , Sean Marotta , Hogan Lovells US LLP , Washington, DC, Christopher T. Handman , and Dominic F. Perella on brief for Snapchat, Inc., amicus curiae.

Before Lynch, Lipez, and Thompson, Circuit Judges.

LYNCH, Circuit Judge.

In 2014, New Hampshire amended a statute meant to avoid vote buying and voter intimidation by newly forbidding citizens from photographing their marked ballots and publicizing such photographs. While the photographs need not show the voter, they often do and are commonly referred to as “ballot selfies.” The statute imposes a fine of up to $1,000 for a violation of the prohibition. See N.H. Rev. Stat. Ann. § 659:35, IV; id.§ 651:2, IV(a).

Three New Hampshire citizens who are under investigation for violation of the revised statute, and who are represented by the American Civil Liberties Union of New Hampshire, challenged the statute's constitutionality. The district court held that the statute is a content-based restriction of speech that on its face violates the First

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Amendment. Rideout v. Gardner, 123 F.Supp.3d 218, 221 (D.N.H. 2015). The New Hampshire Secretary of State appeals, arguing that the statute is justified as a prophylactic measure to prevent new technology from facilitating future vote buying and voter coercion. We affirm on the narrower ground that the statute as amended fails to meet the test for intermediate scrutiny under the First Amendment and that the statute's purposes cannot justify the restrictions it imposes on speech.

I.

In the late nineteenth century, political parties, unions, and other organizations had the power to print their own ballots, each of which was easily identifiable and distinguishable from other ballots by size and color. This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. During this period, New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation. In 1891, the State passed legislation requiring the Secretary of State to prepare ballots for state and federal elections. 1891 N.H. Laws ch. 49, § 10. The State then passed a statute to forbid any voter from “allow[ing] his ballot to be seen by any person, with the intention of letting it be known how he is about to vote.” 1911 N.H. Laws ch. 102, § 2.

Since at least 1979, that provision has been codified in relevant part at section 659:35, I, which, until 2014, read: “No voter shall allow his ballot to be seen by any person with the intention of letting it be known how he is about to vote except as provided in RSA 659:20.” The exception in section 659:20 allows voters who need assistance marking a ballot to receive such assistance. N.H. Rev. Stat. Ann. § 659:20. In 2014, the New Hampshire legislature revised section 659:35, I as follows:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

Id.§ 659:35, I (revisions underlined). The penalty for a violation of the statute is a fine of up to $1,000. Id.§ 659:35, IV; id.§ 651:2, IV(a).

The original version of HB366, the bill amending section 659:35, I, provided that “[n]o voter shall take a photograph or a digital image of his or her marked ballot,” and was introduced by State Representative Timothy Horrigan on January 3, 2013. Horrigan stated that “[t]he main reason this bill is necessary is to prevent situations where a voter could be coerced into posting proof that he or she voted a particular way.” The bill started at the House Committee on Election Law, which recommended its passage, and the members of which expressed rationales for the bill similar to Horrigan's.

The bill then went to the House Committee on Criminal Justice and Public Safety. Deputy Secretary of State David Scanlan spoke in support of the bill, emphasizing the need to prevent vote buying and to protect the “privacy of [the] ballot.” Though a majority of the members of the Criminal Justice Committee supported the bill, a minority disagreed and filed a report concluding that the bill was “an intrusion on free speech.” In order to restrict the bill's scope to activity connected to vote buying, the minority suggested amending the bill as follows:

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This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means only if the distribution or sharing is for the purpose of receiving pecuniary benefit, as defined in RSA 640:2, II(c), or avoiding harm, as defined in RSA 640:3.¹

The majority of the Criminal Justice Committee did not support this amendment, however, and HB366, absent the proposed limitation, proceeded to the full House of Representatives, which passed it by a vote of 198–96. The bill was then introduced to the Senate Committee on Public and Municipal Affairs, which recommended the bill to the full Senate. The Senate passed the bill, and the Governor signed the bill into law, effective September 1, 2014.

The legislative history of the bill does not contain any corroborated evidence of vote buying or voter coercion in New Hampshire during the twentieth and twenty-first centuries. Representative Mary Till, who authored the House Committee on Election Law's statement of intent for the bill, provided the sole anecdotal allegation of vote buying. She asserted:

I was told by a Goffstown resident that he knew for a fact that one of the major parties paid students from St[.] Anselm's $50 to vote in the 2012 election. I don't know whether that is true or not, but I do know that if I were going to pay someone to vote a particular way, I would want proof that they actually voted that way.

No evidence supported this hearsay allegation. The district court correctly held that “[t]he summary judgment record does not include any evidence that either vote buying or voter coercion has occurred in New Hampshire since the late 1800s.” Rideout, 123 F.Supp.3d at 224.

As of August 11, 2015, when the district court issued the summary judgment order on appeal here, the New Hampshire Attorney General's Office had undertaken investigations of four individuals for alleged violations of section 659:35, I, arising from their publication of “ballot selfies”² after voting in the September 9, 2014 Republican primary election. Three of those individuals—Leon Rideout, Andrew Langlois, and Brandon Ross—are the plaintiffs in this case.³

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Rideout, a member of the New Hampshire House of Representatives and a Selectman for Lancaster, New Hampshire, took a photograph of his ballot, which showed that he had voted for himself and other Republican candidates in the September 9, 2014 primary. Later that day, he posted the ballot selfie on his Twitter feed and on his House of Representatives Facebook page. He then explained in an interview with the Nashua Telegraph, published on September 11, 2014, that he took and posted the photograph online “to make a statement,” and that he thought section 659:35, I was “unconstitutional.”

Langlois, who voted in Berlin, New Hampshire, did not approve of the Republican candidates for the United States Senate, and so wrote in the name of his recently deceased dog, “Akira,” and took a photograph of his ballot. When he returned home, he posted the ballot selfie on Facebook with a note that read in part: “Because all of the candidates SUCK, I did a write-in of Akira....” He was then called by an investigator from the New Hampshire Attorney General's Office and informed he was under investigation.

Ross, who was a candidate for the New Hampshire House of Representatives in the 2014 primary, voted in Manchester, New Hampshire. He took a photograph of his marked ballot, which reflected that he voted for himself and other Republican candidates. He was aware of...